29-824. Motion to suppress; appeal; review; appeal after conviction.

(1) In addition to any other right to appeal, the state shall have the right to appeal from an order granting a motion for the return of seized property and to suppress evidence in the manner provided in sections 29-824 to 29-826.

(2) If such motion has been granted in district court, the Attorney General or the county attorney or prosecuting attorney with the consent of the Attorney General may file his or her application with the Clerk of the Supreme Court asking for a summary review of the order granting the motion. The review shall be made by a judge of the Court of Appeals at chambers upon such notice, briefs, and argument as the judge directs, after which such judge shall enter his or her order affirming, reversing, or modifying the order submitted for review, and upon any trial on the general issue thereafter the parties and the trial court shall be bound by such order. Upon conviction after trial the defendant may on appeal challenge the correctness of the order by the judge.

(3) If such motion has been granted in the county court, the Attorney General or the county attorney or prosecuting attorney may file his or her application with the clerk of the district court in the district in which the motion has been granted asking for a summary review of the order granting the motion. The review shall be made by a judge of the district court upon such notice, briefs, and arguments as the judge directs, after which such judge shall enter his or her order affirming, reversing, or modifying the order submitted for review, and upon any trial on the general issue thereafter the parties and the trial court shall be bound by such order. Upon conviction after trial the defendant may on appeal challenge the correctness of the order by the judge.

Source

Annotations

1. Motion to suppress

2. Appeal

3. Review

4. Miscellaneous

1. Motion to suppress

Motion to suppress evidence was improperly sustained. State v. Forney, 181 Neb. 757, 150 N.W.2d 915 (1967).

The trial court should not have suppressed evidence obtained by a law enforcement officer when he squeezed a backpack located in an overhead compartment on a public bus in order to smell the contents of the backpack to determine if it contained contraband. State v. Lancelotti, 8 Neb. App. 516, 595 N.W.2d 558 (1999).

2. Appeal

After a ruling granting a motion to suppress has been appealed, the single-judge opinion on the ruling is binding on the trial court and the parties as a determination of the suppression issue in a subsequent trial. However, if the defendant wishes to reopen the motion to suppress, the defendant must (1) put the State and trial court on notice of such intention by filing a new motion to suppress at least 10 days before trial or (2) make a showing that the existence of one of the exceptions provided in section 29-822 excuses the 10-day requirement. State v. March, 265 Neb. 447, 658 N.W.2d 20 (2003).

This section authorizes an interlocutory appeal by the State from the sustaining of a motion to suppress only when the motion is sustained in district court. The State must look to section 29-827 in regard to review of the sustaining of a motion to suppress in county court. State v. Dail, 228 Neb. 653, 424 N.W.2d 99 (1988).

Appeals by the state from an order suppressing evidence under section 84-705(12), R.R.S.1943, shall be made pursuant to section 29-824, R.R.S.1943. State v. Hinchion, DiBiase, Olsen, and Cullen, 207 Neb. 478, 299 N.W.2d 748 (1980).

On appeal to a single judge, under this section, the trial court's order suppressing evidence as involuntarily given, is affirmed. State v. McNitt, 207 Neb. 296, 298 N.W.2d 465 (1980).

If the state, after prevailing on motion to suppress, was again required to prove legality of search at trial, the state's right to appeal hereunder would be defeated in many cases. State v. Pope, 192 Neb. 755, 224 N.W.2d 521 (1974).

This section provides the State with the specific right of appealing a district court's ruling granting a motion to suppress. State v. Hood, 23 Neb. App. 208, 869 N.W.2d 383 (2015).

The docket fee requirement contained in section 25-2729 necessarily applies to appeal brought by a prosecuting attorney pursuant to this section and sections 29-825 and 29-826, because section 25-2728 does not expressly exclude this section and sections 29-825 and 29-826 from the application of section 25-2729. State v. McArthur, 12 Neb. App. 657, 685 N.W.2d 733 (2004).

Where the State is appealing an order of a county court granting a motion for the return of seized property or to suppress evidence pursuant to sections 29-824 to 29-826, the State must comply with the standard procedures for appeal as provided in section 25-2729, as well as with the requirements specified within sections 29-824 to 29-826; failure to do so deprives the district court of subject matter jurisdiction to review the order. State v. McArthur, 12 Neb. App. 657, 685 N.W.2d 733 (2004).

Upon conviction after the reversal of a suppression order, a defendant may raise the suppression issue before the Nebraska Court of Appeals and, if unsuccessful, again before the Nebraska Supreme Court. State v. March, 9 Neb. App. 907, 622 N.W.2d 694 (2001).

3. Review

An application for review, as provided in section 29-824 et seq., must be filed within the time set in the trial court's order setting the time within which the application must be filed, and the time set in that order may not exceed thirty days. State v. Goreham, 227 Neb. 460, 418 N.W.2d 234 (1988).

Order suppressing evidence may be reviewed by single Judge of Supreme Court. State v. Hagen, 180 Neb. 564, 143 N.W.2d 904 (1966).

4. Miscellaneous

A ruling in a pretrial hearing that a defendant's statement is admissible is not a final order that may be appealed from by a defendant. State v. Pointer, 224 Neb. 892, 402 N.W.2d 268 (1987).

Prosecuting attorney means any county attorney and also any city attorney or assistant city attorney in a city of the metropolitan class when such attorney is prosecuting any violation designated as a misdemeanor or traffic infraction. Deputy city attorney for city of any other class may not properly prosecute an appeal under this statute. State v. Peterson, 219 Neb. 866, 366 N.W.2d 780 (1985).

An opinion by a single judge of the Nebraska Court of Appeals is not an opinion of "the court", and therefore a motion for rehearing is not appropriate. State v. March, 9 Neb. App. 907, 622 N.W.2d 694 (2001).

For an officer to validly seize an item, it must be immediately apparent that the item is or contains incriminatory evidence. Observation of baggies within a fanny pack located on an individual late at night, absent observation of an incriminating substance inside the baggies or other incriminating circumstances, is insufficient to justify a seizure. State v. Runge, 8 Neb. App. 715, 601 N.W.2d 554 (1999).